Mbae v County Builders Ltd & 3 others (Environment and Land Petition E004 of 2025) [2026] KEELC 4924 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a road-construction environmental case to proceed and ordered the county government to release its assessment records, though building work continues.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition was brought prematurely and in contravention of the doctrine of exhaustion of remedies
- 2.Whether the petition is incompetent for want of locus standi on the part of the petitioner
- 3.Whether the prayers sought in the petition fall outside the jurisdiction of the court
- 4.Whether the evidence relied upon is inadmissible
- 5.Whether the application dated 22/9/2025 meets the criteria for granting an interlocutory conservatory order
- 6.Whether a case has been made to warrant an order compelling the respondents to avail records relating to the EIA licensing of the project
Key legal issues
#Exhaustion of statutory remedies (PPARB, Water Act Tribunal, National Environment Tribunal)
The dominant issue in the petition is enforcement of the right to a clean and healthy environment under Article 42, not a tender dispute, so the PPARB and other statutory fora were not the exclusive avenue
The objectors relied on Sections 27 and 28 of the PPADA, but the court held the PPARB's jurisdiction covers tendering and asset disposal disputes. Reading the petition, the gravamen is alleged environmental and constitutional violations in project implementation, not evaluation or award of a tender, hence no exhaustion was required.
Locus standi of the petitioner
Ground 2 rejected; under Article 70(3) no demonstration of loss or injury or third-party authorization is required
The court applied Article 70(3) and the Supreme Court's pronouncement in Export Processing Zones Authority, holding that environmental harm is a public harm and a petitioner need not show personal injury nor obtain authorization from the co-operative or water project to sue.
Jurisdiction of the ELC over the reliefs sought
The reliefs fall within Article 162(2)(b) and Section 13 of the ELC Act
Although some prayers referenced tender standards and administrative action, the court held all reliefs fell within the broad jurisdiction of the ELC under Article 162(2)(b) and Section 13 of the Environment and Land Court Act; ground 3 failed.
Interlocutory conservatory order
Refused; a prima facie EIA Licence existed and halting public road works was not in the public interest
Applying the Munya criteria from the Supreme Court, the court weighed the public-law character of conservatory orders. The road serves the general public and the respondents had an EIA Licence dated 17/12/2025, so continuance was prima facie lawful; damages would remedy any prior illegality.
Compelling availment of EIA and public participation records
Granted against the 2nd, 3rd and 4th respondents in terms of prayer (e), compliance within 30 days
The County Government, the project proponent, did not exhibit the ESIA study report or public participation notices, NEMA ignored the application, and only the contractor exhibited a report; the court found this warranted an interlocutory disclosure order.
Legal principles established
#- A litigant enforcing Article 42 need not demonstrate personal loss or injury to have locus standi
- Where works commenced without an EIA Licence, the only redress mechanism available is a suit in a court of law
- Inadmissibility of evidence is a trial issue, not a ground for striking out a petition in limine
Court orders
#- 1.The preliminary objection dated 27/10/2025 is rejected and dismissed with costs for lack of merit
- 2.The application dated 22/9/2025 succeeds partially against the 2nd, 3rd and 4th respondents in terms of prayer (e); the three respondents shall comply within 30 days
- 3.Costs of the application shall be in the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Interlocutory conservatory order restraining continuation of construction of the Katharaka-Mukui-Mumbuni Road (prayer (d))
The project is public infrastructure and the respondents had presented an EIA Licence dated 17/12/2025, so stopping the works was not in the public interest; damages would be an appropriate remedy if prior illegality is established
New grounds canvassed in submissions but not included in the preliminary objection
The court declined to consider grounds not set out in the preliminary objection
Costs
Costs of the preliminary objection to the 2nd and 4th respondents (objectors); costs of the application shall be in the petition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The dominant issue in this petition is whether the respondents have violated or have threated to violate the right to a clean and healthy environment as guaranteed under Article 42 of the Constitution.
It does emerge from Article 70(3) of the Constitution that a litigant bringing a petition to enforce Article 42 of the Constitution does not require to demonstrate that he has incurred loss or suffered injury.
It is not a basis for automatic striking out of a petition in limine.
it would not be in the public interest to stop the road project at this point.
In the absence of an EIA Licence, the only redress mechanism available to the applicant was a suit in a court of law. The applicant properly instituted the petition.
The preliminary objection dated 27/10/2025 is rejected and dismissed with costs for lack of merit.
The application succeeds dated 22/9/2025 partially against the 2nd, 3rd and 4th respondents in terms of prayer (e) of the application.
Issues in the judgment
#Prayer (a) of the petition cites Article 174(c) while the background recital cites Article 174(i)
The date of the EIA Licence is given variously as 17/12/2025 and 26/11/2025, and the 1st respondent exhibited a report dated 13/1/2025 sworn in an affidavit stated as 12/1/2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbae v County Builders Ltd & 3 others (Environment and Land Petition E004 of 2025) [2026] KEELC 4924 (KLR)", Case Analysis (2026). ELC Petition No. E004 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4924/eng@2026-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.